Tribunal de Apelaciones
17 August 2015
Residencia habitual - art. 3 | Traslado y retención - arts. 3 y 12 | Consentimiento - art. 13(1)(a) | Asuntos no regulados por el Convenio | Grave riesgo - art. 13(1)(b)
Apelación desestimada, restitución ordenada
Arts 2 No. 5, 27 Nos 1-4, and 28 (1) Nos 1, 3 and 4 of the Act for Implementation of the Convention on the Civil Aspects of International Child Abduction (Law No 48 of 19 June 2013); Art. 2 of the Supplementary Provisions of the Implementation Act.
1 child removed at age 3 years ― National of Canada and Japan ― Married parents ― Father and Mother married in Canada in 2009 and living there ― Joint custody at the time of wrongful retention ― Child lived in Canada until July 2013 ― Mother removed the child to Japan with Father’s consent ― A wrongful retention of the child after the entry into force of the Convention between Canada and Japan on 1 April 2014 ― Application for return filed with the courts of Japan in March 2015 ― Appeal dismissed and return ordered ― Main issues: Article 3 Habitual residence of the child ― The initial time of the wrongful retention ― Article 13(1)(a) Prior consent or subsequent approval by the father ― Abuse of rights by the father.
The parents married in Canada in 2009 and were living there. The child was born in 2010. The child is a national of Canada and Japan. In July 2013, at the age of 3, the child was removed to Japan by the mother with the father’s consent.
Despite her promise to return to Canada in January 2014, the mother prolonged her stay in Japan. The child started nursery school there. After continuously discussing when to return to Canada, the mother let the father know in June 2014 that her health condition was not good and she wanted to cancel her flight to Canada, which the father agreed to. In the following month, the father mentioned to the mother his intent to ask for a divorce, with the possibility of appointing her as the sole custodian and him exercising access to the child. In August, the father signed a divorce form and sent it to the mother for consensual divorce, but she refrained from submitting it to the municipal family registrar. There was neither an entry in the form nor an agreement between the parents on who shall obtain the sole parental authority after divorce. In October 2014, after urging the mother to decide on the divorce and parental authority, the father filed an application to the Minister for Foreign Affairs for assistance in realizing the return of child from Japan. In December 2014, he told the child in an email sent to the mother that he was waiting for the child’s return.
After consistently requesting return of the child and being refused by the mother, the father filed a petition for return of the child at the Osaka Family Court in March 2015, which ordered the return of the child (Osaka Family Court, Order, 22 May 2015 (Case Name: 2015 (Ie Nu) No. 5)). The mother appealed the decision to the Osaka High Court.
The Hague Child Abduction Convention entered into force between Canada and Japan on 1 April 2014, so did the Implementation Act in Japan.
The Osaka High Court dismissed the appeal and upheld the order for the return of a child.
“Habitual residence” means the place where the person constantly inhabits and resides for a certain period of time. For an infant to acquire a new habitual residence, a common intention of the parents is required, to the extent that the child abandon the old residence and obtain a new one. In the present case, the parents married in 2009 in Canada, had a child in 2010, and were living there together until the mother moved with the child to Japan in July 2013. The child obviously had a habitual residence in Canada when the wrongful retention initiated in June 2014. There is no ground for assuming that the child’s habitual residence had been transferred to Japan in the absence of a common intention of the parents.
The mother argues that a wrongful retention of the child started in January 2014, on the ground that the father had only agreed to her staying with the child in Japan up to that time and she continued to stay there despite that. Thus, she contends that the Act for Implementation of the Hague Convention on the Civil Aspects of International Child Abduction (“the Act”) did not apply to this case pursuant to Article 2 of the supplementary provisions of the Act, which stipulates that the Act does not apply to a wrongful removal or retention prior to its entry into force on April 1, 2014. As a matter of fact, however, the father subsequently approved of the mother’s stay in Japan until April 2014. Furthermore, at that time she had not definitively refused to return to Canada. The crucial time of initiating the wrongful retention was rather June 2014, when she cancelled her flight and explicitly declared to the father that she would not to return to Canada with the child.
The mother asserts that the father consented to her staying with the child in Japan in his email in June 2014. However, a consent or subsequent approval by the left-behind parent must be proven by objective evidence that he accepted the child to be settled in a new residence and gave up his right to petition for return of the child. In the underlying case, given the circumstances that the father continued later on expressing his wish to reach an agreement on divorce and parental authority with the mother, telling the child that he was waiting for the child’s return and filing an application to the Minister for Foreign Affairs for assistance in realizing the return of the child from Japan, a consent or subsequent approval to the retention of the child cannot be assumed. The same reasoning applies, even if the father had accepted the mother to be the primary carer until their divorce.
The mother put forth that the father’s petition for return of the child constituted an abuse of rights. However, the father had consistently requested return of the child. Neither did he agree that the mother obtain the sole parental authority after divorce, nor did he intend to circumvent his maintenance obligation by petitioning for return of the child. There was, therefore, no abuse of rights.
Furthermore, the Osaka High Court quoted the reasoning provided by the lower court for the denial of grave risk to the child by return to Canada, on the grounds that the child did not have any notable difficulties in living in Canada before, the mother is not hindered from returning to Canada, and the father is ready to care for the child there.
Author: Prof. Yuko Nishitani